"The city's findings offer nothing to answer the question of whether,
when, and/or how city comprehensive plan policies regarding parks might
apply to the proposed Grecian Heights Community Park. We note again
that the city's conditional use requirements call for compliance with the
comprehensive plan and that the city believes that at least some plan
policies are relevant to this conditional use approval because it addressed
them in its findings. With respect to the 'Community Park' policy cited by
petitioners, there is nothing in the city's findings explaining whether the
policy is simply descriptive of a particular variety of park, or whether it is
intended to be a substantive criterion that will control approval of some
park facilities. The city's findings simply do not offer a basis upon which
petitioners or LUBA could come to understand the role played by the
comprehensive plan's park policies generally or the 'Community Park'
policy specifically. If the policy or policies are not applicable now but will
become so at a later stage of the park development process, the city is
obliged to say so in response to petitioners' challenge.

"Given those circumstances, we must conclude that LUBA erred in
not requiring the city to address either why the 'community park' policy was
satisfied or why that policy is not applicable. Consequently, LUBA's
remand to the city should direct the city to address the plan policy and its
applicability to the proposed development. If the policy applies at some
other point in the approval process, that fact should be explained."

Id. at 576 (citation omitted).

On remand, the council again approved the city's conditional use permit
application. Petitioners again appealed to LUBA, which concluded that the council again
had failed to articulate whether the comprehensive plan stated mandatory approval criteria
or simply aspirational or descriptive policies. Monogios v. City of Pendleton, 44 Or
LUBA 576, 582 (2003) (MonogiosIII).

Following remand from LUBA's decision, the council concluded that its
comprehensive plan includes a park classification system that lists types of parks but does
not provide mandatory park development criteria. In a detailed explanation, the council
stated:

"Comprehensive Plan Park Policy 2 is a park classification system. It does
not provide mandatory park development criteria. Comprehensive Plan
Policy 2 sets forth four classifications for parks within the park system, (A)
Play parks and play lots, (B) Neighborhood parks/playgrounds, (C)
Community parks, and (D) Special recreation areas.

"Comprehensive Plan Policy 3 designated the various City parks with one
of the classification designations, regardless of whether the individual park
contains all of the aspirational features listed in the four categories of park
facilities. The City of Pendleton has never interpreted the Comprehensive
Plan park policies to be approval criteria for the development of individual
parks. Pursuant to the provisions of the R-1 zone, a 'city park' is a use
permitted outright in the R-1 Low Density Residential zone. 'City Park' is
defined as 'A recreation area dedicated and preserved [for] public usage.'

"* * * * *

"In the park classification system, pursuant to Comprehensive Plan Park
Policy 2A, play parks are intended to serve the population within a one-quarter mile radius of the park. Pursuant to Comprehensive Plan [Park]
Policy 2B, neighborhood parks/playgrounds are intended to serve the
population within a one-half mile radius. Pursuant to Comprehensive Plan
Park Policy 2C, community parks are intended to serve the community
within a one mile radius. The language in the community park section is
not as clearly worded as in 2A and 2B. Park policy 2C refers to 'city-wide
use within a maximum distance of one mile walking and/or half-hour
riding.' Ultimately, this is an aspirational goal, encouraging the City to
establish multiple community parks, so that no one in the City of Pendleton
is more than one mile from a community park facility. That goal is
aspirational and may never be something that is financially achievable for
the City of Pendleton. Similarly, the provision in the Comprehensive Plan
Policy[,] that says that minimum size for a community park is 30 acres, is
also aspirational. That goal is something the City would like to achieve, but
it may not be financially possible. These policies are designed to encourage
the establishment of additional parks. The City has never found [them] to
be approval criteria. The City of Pendleton, like many other communities,
is faced with hard economic choices. The City has determined that it would
be better to have a 15-acre park than no park at all. Because a 15-acre park
would more likely include more of the descriptive amenities listed in the
Comprehensive Plan Park Policy for community parks, it is classified as a
community park, even if it does not meet the aspirational goal for park size.

"It is the finding of the City Council that neither the reference to a
'minimum' 30 acre park size nor the reference to 'maximum' distance of one
mile walking distance and/or half-hour riding standards are mandatory
approval criteria. Both are considered aspirational."

City Council of the City of Pendleton Final Order, File No. CUP02-03, 4-5 (Oct 7, 2003).

Petitioners once again appealed to LUBA. This time, LUBA upheld the
council's decision. Monogios v. City of Pendleton, ___ Or LUBA ___ (LUBA Nos. 2003-180 and 2003-181, Feb 2, 2004) (slip op at 9) (Monogios IV). LUBA concluded that
petitioners had failed to demonstrate that the council's interpretation of its own
community park policy was inconsistent with the express language of the policy or
inconsistent with its purposes. Id. at ___ (slip op at 6).

Petitioners once again seek judicial review of LUBA's decision. They
contend that the city council's decision is contrary to the language of the community park
policy, which requires a minimum park size of 30 acres.

Meanwhile, the city council amended the Umatilla River Subdistrict zoning
provisions to exempt the development activity at issue in this case from those activities
requiring the city to obtain a conditional use permit at all. The new ordinance provides:

"City parks are hereby determined to be consistent with the purpose of this
subdistrict and fully compatible with the existing open-space and
recreational utilization of the river system. Therefore City parks and
development activity therein are exempt from review and do not require a
conditional use permit or discretionary review under the provisions of this
section[.]"

Pendleton Zoning Ordinance No. 3250, § 113 (2004). In light of the adoption of the new
ordinance, we asked the parties to address whether the petition now is moot. Specifically,
we asked whether the city now intends to abandon the conditional use permit under
review and, if not, what are the practical consequences of a decision as to the validity of
the permit.

In response, the city reported that, notwithstanding the adoption of the new
ordinance, it does not intend to abandon the permit because it is currently litigating the
status of the park and permits for work in the park in federal court. According to the city,
abandoning any rights under the previously issued permits "would place the City in a
difficult position in regards to the other litigation filed by Petitioner[s]." The city
explained that, among other things, abandoning the permit would "put the City in the
position of having to remove the improvements that were lawfully constructed in
accordance with the previously issued permit, and that creates potential problems for the
City with the pending Federal litigation."

We begin with the question whether the adoption of the amendment to the
applicable ordinance renders the petition moot. The Supreme Court has explained that
"[c]ases that are otherwise justiciable, but in which a court's decision no longer will have
a practical effect on or concerning the rights of the parties, will be dismissed as moot."
Brumnett v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993). By the city's own description,
it appears that a decision in this case as to the lawfulness of the city council's and LUBA's
decision will have practical consequences to ongoing litigation concerning the rights of
the parties. Petitioners have offered no argument to the contrary. We therefore turn to
the merits.

At issue is whether the city council's interpretation of its own
comprehensive plan is inconsistent with the express language of the plan or its apparent
purposes or policies. ORS 197.829(1)(a); Clark v. Jackson County, 313 Or 508, 515, 836
P2d 710 (1992). The express language in dispute is as follows:

"POLICIES

"1. It shall be the policy of the City of Pendleton to regard one acre
of gross recreation land per 100 population as the optimum standard for the
provision of active and passive recreational space, exclusive of schools,
special recreation areas, national and state park facilities. The [C]ity shall
regard two-thirds acre per 100 population as the minimum standard for
recreation land use.

"2. The park classification system and standards for the City of
Pendleton shall consist of four types, which are:

"A. Play parks and play lots shall be provided only when
necessary to provide recreation opportunities for small youngsters residing
in the immediate neighborhoods when no other developed sites (a
neighborhood park or a community park) are available. Whenever possible
play lots and play parks can be developed in conjunction with other small
sites required for municipal purposes or on school sites as well. They shall
be designed to serve the population [within] one-fourth (1/4) mile radius
whose access shall be minimally obstructed by major barriers to pedestrian
traffic such as arterial streets, railroads and rivers or topography. The type
of equipment should generally include children's swings, slides, see-saws,
drinking fountains, climbing devices, and benches. Minimum size: 10,000
sq. ft.

"B. Neighborhood Parks/Playgrounds shall be designed and
equipped to provide for quiet relaxation as well as to allow for active play
and should include the neighborhood play lot. They shall be designed to
serve the population within a one-half mile radius whose access shall be
minimally obstructed by major barriers to pedestrian traffic such as arterial
streets, railroads, and rivers or topography, and whenever practical shall be
located adjacent or in conjunction with play lots since the same location
servicing area criteria applies. The equipment and activities provided
should include benches, restrooms, play lot equipment, [a] hard surface
sport area (tennis, handball, etc.), and [a] turf area (softball). Minimum
size: five acres.

"C. Community Parks are to be located and designed to be
separated from any other major organized recreational area and equipped
to provide major facilities and uses such as softball, baseball, archery,
horse shoes, golf driving, tennis, handball, indoor passive facilities,
restrooms, etc., for city-wide use within a maximum distance of one mile
walking or half hour riding. Minimum size: 30 acres.

"D. Special Recreation Areas.

"(1) Acquisition, development, and maintenance of a
Parkway system shall include sufficient measures necessary to preserve and
promote the aesthetic appearance of the community and to serve as an
infrastructure of the entire City park system. * * *

"(2) Special Recreation Facilities and Activities
include recreation centers, swimming pools, golf courses, boating, skiing,
camping, ice and roller skating, special crafts, and similar major activities.
These activities may be located within Community Parks or adjacent/within
school grounds, but are usually found as a separate entity[.]"

Pendleton Comprehensive Plan, Recreation Plan Policy, CP 20-22 (emphasis added). The
policy is followed by a series of "programs" designed to implement the stated policies.
For example, accompanying what the parties have denominated "Policy 2" is the
statement that the city must "[e]valuate the City's existing parks to determine their
compliance with the set-forth policy standards" and must also "[d]evelop appropriate
cost-effective programs to rectify identified short-comings."

The language of the policy and its implementing programs thus expressly
contemplate a set of goals, which the city may or may not be able to satisfy at a particular
time. By its terms, the policy speaks to future city planning efforts. There is nothing in
the policy language that refers to approval or disapproval of particular applications.

Petitioners insist that, notwithstanding the absence of wording referring to
the approval or disapproval of applications, LUBA's and the city council's interpretation
of the policy founders on the use of the word "standards" and on the specific "minimum"
parcel sizes that are mentioned in it. The reference to "standards" in the policy, however,
is ambiguous at best. It appears in the introductory clause: "The park classification
system and standards for the City of Pendleton shall consist of four types[.]" The
reference to "standards," if anything, appears to refer to standards of classification, not
standards for determining whether to grant or deny a particular application. At the very
least, construing the reference in that manner is plausible and not inconsistent with the
language of the policy.

Petitioners also refer to the fact that the policy refers to "minimum" park
sizes. Petitioners fail to explain, however, why that reference can refer only to a
mandatory approval criterion. The city interprets the references to the minimum park
sizes as "aspirational" and points to the fact that the policy expressly requires programs to
address instances in which parks do not conform to the goals stated in the policy.
Nothing in the wording of the policy renders that interpretation unlikely or unreasonable.
Indeed, if anything, what is unlikely is petitioners' suggestion that the policy would
require the city to adopt an "all-or-nothing" position with respect to the creation of public
parks, that is, that the policy would require the city to determine that no park at all is
preferable to creating a park that does not satisfy all of the classification standards.

We conclude that LUBA did not err in determining that the city council's
interpretation of its comprehensive plan was not inconsistent with the express language of
the plan or its apparent purposes or policies.